Rebecca is a former South Australian who now lives in country Victoria. Although she became pregnant in NSW, where the intended parents live, she will have the baby in Victoria.

After making the decision to become pregnant with their child, it was time for the lawyers to step in.

Every decision or possible outcome that affects Rebecca, the unborn child or the parents had to be discussed with independent lawyers.

Different laws for different states

Anna Parker, the Chair of the Children and Youth Issues Committee, Law Institute of Victoria, said the laws governing surrogacy come into effect not where the baby is born but where the process of fertilisation took place.

"In Rebecca's situation if the commissioning or intended parents live in NSW and the procedure took place there, the parents will have to apply to the Supreme Court in that state," Ms Parker said.

Ms Parker said surrogacy contracts can be different in every case, depending on where the surrogate and intended parents live.

"It's very important to be aware of the specific law in the specific state where the procedure is taking place. Some states don't require a written contract at all."

When to seek legal advice on surrogacy

But at what stage should those considering finding a surrogate mother seek legal advice?

"As early as possible," Ms Parker said.

"Certainly before the procedure takes place."

"A lawyer can help advise on what goes into an agreement and can also help draw up the agreement.

"They can make sure everything takes place in a way that is legal and that will not interfere with a parentage order eventually taking place."

The parentage order is sought by the intended parents after the birth of the child, by the parents attending the Supreme Court in their state, to become the legal guardians of the child.

Should Rebecca change her mind while pregnant, or after giving birth, Ms Parker said the contract becomes null and void, with no legal action able to be taken against the surrogate.

"The contract is not enforceable against the surrogate mother and she is legally able to change her mind."

"In that case, the child's parents could apply to the Family Court for an order for the child to live with them, but they wouldn't be able to enforce the surrogacy contract to actually become the child's parents."

Ms Parker said that surrogacy arrangements were generally successful but there have been cases where the surrogate mother had kept the child.

"Sometimes the surrogate does have trouble relinquishing the child and unfortunately there's no way to protect against that."

Ms Parker said she was aware of cases where surrogates had handed over the child on the day of their birth, or days following, but the parents still had to apply to the Court to become the child's guardians.

"Quite often, the initial bonding of the child is with the intended parents rather than with the surrogate mother," she said.

The rights of the child

Ms Parker said in most states, surrogacy laws were designed to protect the rights of the child.

"The child is first and foremost.

"A parentage order will only be made if it is in the best interests of the child."

Mrs Parker said there was nothing legally stopping the child from returning to their birth mother at any age after they were born.

"If for whatever reason the child wished to live with the surrogate mother, there wouldn't be a legal prohibition on that matter."

There is also no legal barrier to the child finding out about their true origins.

Ms Parker said surrogacy was a 'developing' area of the law.

"My firm does a fair bit of surrogacy work, but it's still rare...an obscure part of family law."

"It's only been in recent times that legislation has been enacted in terms of surrogacy so it's becoming increasingly common."

"The states have moved to bring their legislation closer to each other in recent years.

"There is a move to nationalise laws regarding surrogacy however so far there's no national consistency but there is a plan underway."

Hear the full interview with Anna Parker by locating the audio to the right.

Continue following this story on ABC South East Mornings on Wednesday and Thursday this week at 9.05am.